Posted
by
michael
on Tuesday June 04, 2002 @05:10AM
from the stuff-to-avoid dept.

mcglk writes "I was happy to see that SonicBlue had released its new generation of ReplayTV, the 4500. And it was $250 cheaper than the 4000. Except for that $250 one-time service activation fee. Worse is the agreement that goes along with it. Term1A basically says, No more hacking. Term1G says that they can enable or disable anything they want without notice. And Term2C says that if someone even alleges you are infringing on copyright, you can be shut down with no notice, no recourse, and there's nothing you can do about itthe agreement indemnifies them completely. I was really looking forward to getting one of these, too." Under that agreement, SonicBlue claims the right to destroy your device when you connect for updates.

Just when personal video recorders were starting to look good they do this. And tivo (in the UK at least) have decided that they, not you control what you record.
Are there no honest companies left out there who just want to make their money by selling a good product, and not by trying to exploit their customers in some underhanded way?

I think it would be great to start a non-profit technology company.... one that had consumer interest in mind. no need to really innovate on NEW products, just make products that do what corporate, money-sucking products do with the consumer interest in mind.

PVR are perfect examples. How hard is it to build a PVR? With technology today, not too hard. How hard would it be to build one that didn't put all these absurd money-grubbing restrictions on it? not hard at all. How many people would chose to buy a product designed to MAKE CONSUMER'S LIVE BETTER instead of MAKING CORPORATE EXECS and BUSINESS OWNERS RICH?

In other words, it's not obvious that nice businesses fail because they're nice. They might fail just because new businesses fail. Likewise, rotten companies get more press and more attention, but that doesn't (necessarily) mean there are more of them or that their rottenness enhances their survivability.

These terms are identical to those terms that are present within the Tivo service license agreement. I think you can expect terms like this from whomever you get your PVR service from. They are here to Cover Their A$$. You can find more information about Tivo's license here:

These terms are identical to those terms that are present within the Tivo service license agreement.

Well, no, they aren't. But lets just say they are for the sake of argument.

Just because an industry decides to go in a certain direction, it doesn't mean it is good for consumers. Alerting consumers to less-than-favorable policies is the first step to putting pressures on companies (and the industry) to change those policies.

Granted, consumers have to give a damn. In most consumer markets, issues like this are lost on the masses of that market. However, PVRs still remain an early-adopter market. Early adopters tend to be more tech-savvy and an issue like this may register to that market.

Once again/. readers look at the issue backwards. WHY do you think a business is even remotely concerned with what is good for consumers? Why should they be? Do you want the whole world to be looking out for you? Oh no, you can't have a car that goes too fast, you might crash! You can't have inline skates, people have broken bones with those! You can't have a home loan because it would be unfair to make you pay interest!

Consumers don't have to do anything. Especially they don't have to buy a product they don't like, or agree to terms they find unfair. But if they accept an agreement without bothering to read it they are just plain stupid and deserve what happens.

On the other hand, Sonic blue can ask you to agree to anything they fucking like. If they make money out of it they'll keep doing it.

Once again/. readers look at the issue backwards. WHY do you think a business is even remotely concerned with what is good for consumers? Why should they be?

Because healthy, happy, non-screwed-over customers:
* Buy more products and services from them in the future; and
* Tell their friends and acquaintances how great the company is, and encourage other people to become customers; and
* Don't involve the company in expensive lawsuits.Well-run businesses that take the long-term view realize this and treat their customers with respect. After all, the customers are the people who are feeding them.

The trouble is, poorly run businesses are rampant, and almost nobody cares what they're doing 20 years from now. Most companies don't seem to look much farther than next year (many no farther than next quarter).

Do you want the whole world to be looking out for you? Oh no, you can't have a car that goes too fast, you might crash! You can't have inline skates, people have broken bones with those!

This is off-topic fluff, we're not talking about laws designed to "protect" you whether you like it or not, we're talking about a company reserving the right to screw their customers royally, taking their money and withholding service, and hiding this fact in the fine print of a contract they expect less than 5% of their market to read.

You can't have a home loan because it would be unfair to make you pay interest!

This one is actually on topic. Many strict Christian (and I assume other religions) sects consider Usury (the charging of interest) to be a sin. In the early days of the US, many of the northeast states had laws written by strict Christian fundamentalists, and it was actually illegal to loan money for interest. As the population became less fundimentalist, the people made a conscious decision to allow limited Usury (there still are limits on how much interest can be charged) for the practical consideration of having a market for loans.

Consumers don't have to do anything. Especially they don't have to buy a product they don't like, or agree to terms they find unfair. But if they accept an agreement without bothering to read it they are just plain stupid and deserve what happens.

People have been conditioned (I suspect deliberately) to not read boilerplate contracts. They are long, hard to read, and often oddly worded to make them more confusing. More and more often lately, most people only have access to read the contract after they have already paid their money.

While this contract is actually accessible online, most consumers won't even see it until after they've already shelled out $450 for the product. Not agreeing to it means they will have to return their product, something that is anywhere from annoying to impossible depending on the circumstances.

On the other hand, Sonic blue can ask you to agree to anything they fucking like. If they make money out of it they'll keep doing it.

Actually, they can't. There are laws limiting what can be agreed to in contracts. In most states, there are laws further limiting what can be "agreed" to in a non-negotiated contract (such as a boilerplate terms of service). I am not a lawyer, but I suspect if they use this agreement to disable the device of a New York State customer within 90 days of the customer purchasing the product, they will be in violation of NYS law.

Sorry, I posted too early in the morning as I was rushing and I left out the bit tying them together. Both the outcry over this contract and the historic outcry over Usury are people upset over a contract term they consider morally wrong. In the Usury case, it was against their religion, in this case there is an expectation that if you pay for something, you actually get it, and they don't take it away from you. Discussing the morality of the contract, and comparing it to another "morality of the contract" issue is on-topic, in my opinion.

There would be far less outcry if they were just talking about stopping the service if they didn't like you (assuming these boxes are useful without the service), but they are reserving the right to actively disable the box that you spent at least $450 to own. I consider this immoral.

Actually, those who are religiously opposed to Usury can't receive interest either, which makes it very difficult for them to get bank accounts, but that's a tangent.

If you don't like the agreement, return your ReplayTV.

Returns are at best annoying, at worst they can be impossible, depending on the store and where you live. Some stores in some states won't accept returns except under very specific circumstances, and "not liking the service agreement" isn't one of them.

Are you deliberately being stupid? So you don't like the fact that they can "actively disable the box that you spent at least $450 to own" - then WHY THE FUCK DID YOU SPEND $450!!! You IDIOT! Who FORCED you to buy, and keep, a ReplayTV!

I am more familiar with Tivo than ReplayTV, I am assuming ReplayTV is similar enough for my argument to make sense. If I go to the store to buy a Tivo, I have a very useful and flexible digital recording device, if I pay for the Tivo service then my digital recording device also knows alot about upcoming shows. If I cancel my service, I still have a useful device it just doesn't know about upcoming shows anymore.

My limited understanding is that older ReplayTV boxes are the same way. This new box with the new service agreement has the added "feature" of, if someone accuses me of copyright infringment, then with no due process I not only have no service, but they've made my device not work as well, no refund. No actual infringement is necessary, just someone accusing you of breaking a civil law against someone unaffiliated with ReplayTV.

My cable provider has no right to destroy my TV, my "Digital TV Guide" provider has no right to destroy my digital recorder. A non-negotiated contract should not be sufficient to give them that right.

Your morals are no basis for forcing anyone to offer you a contract that you like.

My morals are a basis for what I will and won't accept, which is the whole basis of a contract. My morals are also one of the guides I use in deciding which laws I do and don't support.

While Contract Law has a great deal of breadth and power, it is not limitless. This is a Contract of Adhesion (i.e. no negotiation has taken place), and the power of such contracts is even more limited. I feel it is (or if not, it ought to be) Unconscionable [findlaw.com]for such a contract, where I am merely purchasing a service, to give someone the right to damage or destroy my property. Actual negotiation for mutually agreeable terms is required before I can accept that I have agreed to give someone the right to destroy my property.

Well, no, they aren't. But lets just say they are for the sake of argument.

Well, why don't we simply READ the two and note that at least two of three are the same.

Replay 1A: A. Authorized Product. You may access and use the ReplayTV Service only with a ReplayTV 4500 product authorized to receive the ReplayTV Service and you agree not to tamper with or otherwise modify the authorized product.

Tivo: Using the TiVo Service. You may access and use the TiVo Service only with a product authorized to receive the TiVo Service and you agree not to tamper with or otherwise modify the authorized product....

Replay 1G: G. Changes to ReplayTV Service. At its discretion, ReplayTV may automatically add, modify, or disable any feature or functionality of the ReplayTV Service or on the ReplayTV 4500 when your unit connects to our server or at other times with or without notice. In addition, ReplayTV may modify the terms and conditions of this Agreement from time to time (and will notify you of these changes to the Agreement)

Tivo: Changes to TiVo Service. TiVo may, at its discretion, from time to time change, add or remove features of the TiVo Service or change the terms and conditions of this agreement. Such changes shall be effective upon notification by TiVo. You are responsible for viewing any new terms and if you are dissatisfied with any such changes to the TiVo Service or this agreement, you may immediately cancel your subscription as provided in the "Termination of Service" paragraph below. TiVo also reserves the right to discontinue the TiVo Service altogether at any time in its discretion.

Tivo: Changes to TiVo Service. TiVo may, at its discretion, from time to time change, add or remove features of the TiVo Service or change the terms and conditions of this agreement. Such changes shall be effective upon notification by TiVo. You are responsible for viewing any new terms and if you are dissatisfied with any such changes to the TiVo Service or this agreement, you may immediately cancel your subscription as provided in the "Termination of Service" paragraph below. TiVo also reserves the right to discontinue the TiVo Service altogether at any time in its discretion.

They say they can change TIVO SERVICE. Not your tivo. They can stop doing season passes, stop giving you guide data, whatever they want. But they NEVER claim to be able to disable your tivo.

Replay says they can mess with your replay unit at any time, even disable it.

These terms are identical to those terms that are present within the Tivo service license agreement.

They most certainly are not identical. Tivo makes no restrictions on hacking the hardware, ReplayTV does. Also, while Tivo can cancel my service if I actually infringe someone's copyright, with ReplayTV, Sonicblue can cancel my service if I am "alleged to infringe." Tivo's license agreement isn't perfect, but it has limits and yields the customer some reasonable freedom.

Hmmm, then I am pretty sure you didn't read the agreement, for instance:

TiVo retains the absolute right to immediately suspend or terminate your account, and terminate this agreement, if the charges to your credit card for the fees described in the "Subscription Fees and Payment Authorization" paragraph above are refused for any reason, if you breach any provision in this agreement, if you misuse the TiVo Service, and/ or if you alter the Recorder or use the TiVo Service in such a manner as to infringe upon the intellectual property rights of TiVo or any third party.

and

Any attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute or use for other purposes either the authorized product or software of this system is strictly prohibited.

and

You may access and use the TiVo Service only with a product authorized to receive the TiVo Service and you agree not to tamper with or otherwise modify the authorized product.

and

TiVo may, at its discretion, from time to time change, add or remove features of the TiVo Service

IANAL, but I think it is fair to say that these terms are exactly the same.

This Agreement applies to your use of the ReplayTV Service and is a legally binding agreement between you SONICblue Incorporated and its wholly owned subsidiary, ReplayTV Inc. (collectively "ReplayTV"). By clicking the button marked "I Agree" below or by otherwise communicating your acceptance to ReplayTV or by using the ReplayTV Service, you agree to all the terms and conditions in this Agreement. IMPORTANT NOTE: Your ReplayTV 4500 works only by receiving the ReplayTV Service offered and provided by ReplayTV. If you do not agree with all the terms and conditions of this Agreement, you are not authorized to use the ReplayTV Service, and you may return the ReplayTV 4500 to ReplayTV or the authorized retailer from whom you purchased the product for a full refund.

1. Use of the Service

A. Authorized Product. You may access and use the ReplayTV Service only with a ReplayTV 4500 product authorized to receive the ReplayTV Service and you agree not to tamper with or otherwise modify the authorized product.

B. Personal Use Only. The ReplayTV Service is for personal, residential, non-commercial use. Any other use is not permitted under this Agreement. You may not re-sell the ReplayTV Service in whole or in part, nor, except as part of your transfer of the ReplayTV 4500 unit as provided in this Agreement, may you transfer the ReplayTV Service.

C. Eligible Subscribers. You represent that you are at least 18 years of age. You may permit minors to use the ReplayTV Service under your account, but you agree that you are fully responsible for the minors' use of the ReplayTV Service.

D. Accurate Information. You must give us accurate and complete information when you activate and use your ReplayTV Service. If you do not, ReplayTV may terminate your account at any time.

E. ReplayTV's Privacy Policy. ReplayTV respects the privacy of your information and will not disclose any of your information except as permitted in ReplayTV's Privacy Policy. A current copy of ReplayTV's Privacy Policy is included in the Privacy Policy section of the main menu in the ReplayTV software included on your ReplayTV 4500 and on the SONICblue website www.sonicblue.com. Please read it carefully before using your subscription for the ReplayTV Service. By using the ReplayTV Service, you understand and agree with how ReplayTV handles your information as described in our Privacy Policy. ReplayTV will use commercially reasonable efforts to notify you of any substantial and material changes to the Privacy Policy. However, you are responsible for viewing the latest Privacy Policy which can be accessed through our website at www.sonicblue.com.

F. TV Programming. The ReplayTV Service gives you the ability to see and record televised programs. However, ReplayTV exercises no editorial or programming control over these programs ("Third Party Content"). You understand that (a) ReplayTV does not guarantee the access to or recording of any particular program, (b) programming is not under ReplayTV's control, (c) ReplayTV is not responsible for and has no editorial control over any Third Party Content, and (d) ReplayTV has no control over the distribution of programs. You also understand that television programs, films, videotapes, and other materials may be copyrighted. Unauthorized recording and sending of such material may be contrary to the provisions of the United States copyright laws. The rights of copyright holders are subject to limitations when persons are engaged in "fair use" or are protected by other provisions of law. You are responsible for complying with these laws.

G. Changes to ReplayTV Service. At its discretion, ReplayTV may automatically add, modify, or disable any feature or functionality of the ReplayTV Service or on the ReplayTV 4500 when your unit connects to our server or at other times with or without notice. In addition, ReplayTV may modify the terms and conditions of this Agreement from time to time (and will notify you of these changes to the Agreement)

H. Software. ReplayTV provided certain software with the ReplayTV 4500 unit you purchased, and may provide replacement (for example, bug fixes, updates or upgrades) and additional software to you from time to time (which may include by automatic downloads to the ReplayTV 4500 unit), in order for you to access and use certain features of the ReplayTV Service. Your use of all such software is subject to the terms of this Agreement. However, if a software license agreement is included with any such software, then those terms (and not this Agreement) will govern your use of that software. You have a limited, non-exclusive right to use the software only with the ReplayTV 4500 unit with which the software was provided or for which it was downloaded. You may make one copy of the software you download for backup purposes only, provided that such backup copy must include all copyright and other proprietary information and notices contained on the original. You acknowledge and agree that the software is copyrighted and contains material that is protected by copyright, trademark, trade secret and other laws and international treaty provisions relating to proprietary rights. You may not remove, change or hide any of ReplayTV's or its licensors' or suppliers' proprietary rights notices on or in the software or on output generated by the software. Except and only to the extent permitted by applicable law and this Agreement, you may not copy, decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, assign, transfer, or create derivative works from the software. You acknowledge and agree that any unauthorized use, transfer, sublicensing or disclosure of the software may cause irreparable injury to ReplayTV, and under such circumstances, ReplayTV shall be entitled to equitable relief, without posting bond or other security, including but not limited to, preliminary and permanent injunctive relief.

I. Ownership; Certain Rights. ReplayTV and its licensors and suppliers retain title to and ownership of all the ReplayTV software. ReplayTV and its licensors and suppliers own the intellectual property rights in and to the ReplayTV 4500 unit and the ReplayTV Service, including the copyrights and trademarks associated with the ReplayTV 4500 unit and the ReplayTV Service.

2. Fees and Term of the ReplayTV Service

A. Subscription Fees. Your use of the ReplayTV Service is subject to your payment of the subscription fee in advance. The subscription fee covers only the basic ReplayTV Service, and does not include charges or fees (a) for premium or other additional services offered as part of or through the ReplayTV Service for which ReplayTV charges additional fees, or (b) to third parties for telephone service or broadband access, if applicable. You are responsible for any such telephone or broadband service charges and acknowledge and agree that you shall be solely responsible for all disputes with any third party related to the same.

B. Lifetime Service. Subject to the terms of this Agreement, once you have paid the Service Activation Fee for your ReplayTV 4500 you will not incur any additional charges to receive the basic ReplayTV Service during the lifetime of that product. The ReplayTV Service will be provided only to that particular ReplayTV 4500 unit for which you paid the subscription fee and cannot be transferred to any other units you may purchase. However, the ReplayTV Service will still apply to that unit even if you give it or sell it to a friend or family member. Thus, any service that is activated follows the ReplayTV 4500 unit and not the person.

C. Termination of Service; Your Indemnity Obligations. Notwithstanding any term of this Agreement, ReplayTV has the absolute right to immediately suspend or terminate your account, and terminate this Agreement, if you (a) breach any provision of this Agreement (including but not limited to altering the ReplayTV 4500 unit or related software), (b) misuse the ReplayTV Service, or (c) infringe (or are alleged to infringe) upon the intellectual property rights of ReplayTV or any third party in your use in any way of the ReplayTV Service. You further agree that you will defend, indemnify and hold harmless ReplayTV and its affiliates from and against any and all claims, actions, suits, liabilities, losses, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any of the actions described above that would entitle ReplayTV to terminate this Agreement.

3. DISCLAIMERS AND LIMITATIONS OF LIABILITY

A. Warranty Disclaimer. THE REPLAYTV SERVICE IS PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." REPLAYTV AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND REGARDING THE REPLAYTV SERVICE (INCLUDING THIRD PARTY PROGRAMS), WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ReplayTV makes no warranty that (a) the ReplayTV Service or its content will meet your requirements, be uninterrupted, error-free, secure or timely; or (b) that the information obtained through the ReplayTV Service (including but not limited to Third Party Programs) is accurate, current, complete or reliable. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply to you. You may also have other legal rights that vary from state to state.

B. NO INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL REPLAYTV OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND (WHETHER FOR LOST PROFITS, LOSS OF DATA OR OTHERWISE) ARISING FROM OR RELATING TO YOUR USE OF THE REPLAYTV SERVICE OR THIS AGREEMENT, EVEN IF REPLAYTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

C. LIMITATIONS OF REPLAYTV'S LIABILITY. IN NO EVENT SHALL REPLAYTV'S AGGREGATE LIABILITY TO YOU (AND ANYONE ELSE WHO USES THE REPLAYTV SERVICE THROUGH YOUR ACCOUNT), FOR ANY AND ALL CLAIMS ON ANY BASIS, WHETHER IN TORT, CONTRACT OR OTHERWISE, EXCEED THE TOTAL AMOUNT YOU PAID TO REPLAYTV FOR THE REPLAYTV 4500 UNIT AND THE REPLAYTV SERVICE. YOU UNDERSTAND THAT THESE LIMITATIONS OF REPLAYTV'S AND REPLAYTV'S SUPPLIERS' AND LICENSORS' LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT, AND REPLAYTV WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATION. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

4. Miscellaneous

This Agreement (including referenced documents) constitutes the entire agreement regarding your use of the ReplayTV Service and supersedes any and all prior statements, agreements or understandings with respect to the ReplayTV Service. This Agreement is governed by and will be interpreted in accordance with the laws of the State of California without regard to its conflict of laws principles. If any provision of this Agreement is invalid, illegal or unenforceable, such provision will be deemed changed only to the extent necessary to make it valid, legal and enforceable; all other provisions of this Agreement will continue in full force and effect. Any failure by ReplayTV to strictly enforce any provision of this Agreement will not waive ReplayTV's right to later enforce that provision or any subsequent default or breach of the same or a different kind.

BY CLICKING ON THE "I AGREE" BUTTON BELOW, I REPRESENT THAT I HAVE READ, AND I UNDERSTAND AND AGREE TO, THE TERMS STATED ABOVE.

If you do not agree with all the terms and conditions of this Agreement, you are not authorized to use the ReplayTV ServiceThey are selling the service with the restriction, not the box. Use what is in the above quote to not agree to the service, then modify the hardware to suit your needs. Remember to not use their service, that would be theft of service since you did not agree to the terms.

Actually, you're missing the sentance before it:Your ReplayTV 4500 works only by receiving the ReplayTV Service offered and provided by ReplayTVSo, by not using the ReplayTV Service, your ReplayTV will (supposedly) not work, hmmm, I wonder how well it "won't work" and if it *can* work after being removed from the ReplayTV Service it would make that sentance null and void and I wonder if a skilled lawyer could void the entire agreement, or at least large portions of it. So, in theory, as long as it's disconnected from the service, you may hack to your hearts desire as long as when you reconnect it, it doesn't try to use the service, because as soon as it uses the service you would be in violation of the license agreement.

A1. Use of ReplayTV as a Cupholder. No individual, owner or otherwise, may place on, above, or even near, the ReplayTV Digital Video Recorder, without first purchasing an additional license to do so, a cup containing liquid, hot, cold or even luke warm. Furthermore, any such container and its contents immediately become property of ReplayTV upon the occurence of said item coming into contact with the ReplayTV 4500.

F1: TV Programming Ownership. Upon viewing any programs from the ReplayTV Service, any and all devices used to capture such programming information immediately come under the soivereign control of ReplayTV and its subsidiaries, agents and legal representatives. This includes eyes(retinas, cornea, fovae, irises, vitreous humor, and any other part involved in the acquisition and conveyence of said programming), nerves(Optic, individual rods and cones, neurons, gray matter, and any other part involved in the acquisition, conveyence and comprehension of said programming), and any device used to aid in viewing said content such as glasses, contact lenses, or hearing aids.

X1. Disagreements with ReplayTV. Anyone who disagrees with ReplayTV with regard to this agreement will be sacked. Those who are responsible for said sacking and who do not fulfil their responsibilities to sack, will be sacked. Upon the occurence of said sackers of the sackers not sacking thee sackees, a low yield thermonuclear device will be detonated over the city containting said individual who disagreed with teh Replay Terms of Service AND those sachers who did not sack the sackers of the original sackees sackers'ers, oh whatever!

It's quite simple, really -- not once did you ever see the agreement, and therefore you couldn't possibly have agreed to it.

Need it spoonfed to you? Okay, keep reading.

By beginning the activation of your new ReplayTV unit here [replaytv.com], you will be activating the unit without agreeing to the agreement that seems to have Slashdotters up in arms -- in actual fact, you won't even have seen such an agreement, period.

In some jurisdictions, click-through agreements are legally binding -- but I've yet to hear of a jurisdiction which would consider you bound to an agreement you didn't see or agree to whatsoever.

but I've yet to hear of a jurisdiction which would consider you bound to an agreement you didn't see or agree to whatsoever

Tell that to American Medical Response (AMR) when they pick you up and take you to the hospital, then send bill collectors after your ass to get their fees when you manage to live. No kidding, they charge $150/mile, and a minimum of around $300 ('location fee') to start the journey. I'm still amazed they can run a business when they're taking people who aren't even conscious to the hospital, without having signed a contract. (Or worse, signing a contract while still in a barely lucid state.)

Of course, to claim that defense in court you'd probably have to assert that the retailer you bought your ReplayTV from beat you unconscious with a baseball bat, then threw you out the door with ReplayTV in hand.. then, I've seen a lot of Circuit City employees with Louseville Sluggers recently.

Um, I don't think so. Activating it on the web is only half the process. You have to go through activation screens on the ReplayTV box itself, and it asks you if you agree to the terms of the service agreement. Besides, the Agreement specifically states:

"...by using the ReplayTV Service, you agree to all terms and conditions in this Agreement."

This contract is almost a Ferenge contract "...If you read this document you violate the terms of the contract..."

So with a a bit of html magic one could submit the form with a different contract -- one the is more user friendly to the consumer. Does thier software check that it is the original contract??? If it does not then THEY will then have aggreed to "our" obnoxious terms.

If you user their service and it works does this not violate the agreement?

Today a contract should actually state all of the details that each US state applies to such agreements and to each country as well. It should be a nicely format XML contract with all of the details downloadable to your machine. If they can't give you a copy automatically it should not be enforceable.

If you sue them and win it seems you still have to pay their costs or am I wrong?

I really don't see why this should affect the poster's take on getting one of these. The manufacturer's covering its ass in all ways possible. If you say you agree to it and hack the machine, pirate programs, whatever, you're at fault not them. They're simply making that clear. Get the machine, hack it, do what you want. Why would the license agreement change your mind, when you're going to do it anyway?:)

Because the EULA says they can turn the damn thing off if THEY decide to. Moreover, the EULA says if they decide to, they don't owe you anything.

In the pre-EULA days, when you bought something, you owned it. Now both Sonic and TIVO are saying that despite you giving them money, they still own the device and can do whatever they want with it, including disabling it.

An example of where this will get unpleasant is if they start using the machine in some way that you hadn't anticipated. TIVO just force fed their UK subscribers a show the subscribers didn't ask for. What if the machine starts forcing you to wacth an ad before they'll let you see what you bought the machine for? What can you do? Not a thing according to the EULA.

What if a competing service that doesn't monkey around with the basic service springs up and offers their wares at a lower price? Can you switch to them? Nope - the EULA forbids modifying the software. If Sonic or Tivo figure out that you switched, they can legally turn off your machine.

The really ridiculous thing about all of this is there isn't enough worthwhile stuff on TV to warrant watching TV in the first place. How many times have you gotten up after watching TV and thought "That was a waste?" Maybe deleting the ads would have improved the signal to noise ratio but now the machine you bought to skip the ads is beginning to force ads down your throat.

Of course not, that would be balanced research, and Slashdot editors/authors don't have time for that what with keeping so busy being liberal reactionaries.

I can't stand Replay for a myriad of technical reasons, but read Tivos license agreement [tivo.com] - it says all the same things, sometimes in nearly the exact same words.

"Using the TiVo Service. You may access and use the TiVo Service only with a product authorized to receive the TiVo Service and you agree not to tamper with or otherwise modify the authorized product..."

"TiVo retains the absolute right to immediately suspend or terminate your account, and terminate this agreement, if the charges to your credit card for the fees described in the "Subscription Fees and Payment Authorization" paragraph above are refused for any reason, if you breach any provision in this agreement, if you misuse the TiVo Service, and/ or if you alter the Recorder or use the TiVo Service in such a manner as to infringe upon the intellectual property rights of TiVo or any third party."

They have to say those kinds of things to keep their legal options open should someone do something they feel they have to respond to. Until they give some sign of enforcing their agreement more rigidly than Tivo getting your panties in a wad over what some standard legal disclaimer says is a bit premature. Of course premature and uninformed ranting is what Slashdot is all about these days, isn't it?

Interesting coincedence that we are getting so much bad press on Microsoft's competitors these days. Newgroups are flooded with TiVo = SPYWARE FUD and of course, the TiVo forces it's customers to watch programs they don't want to watch FUD and Replay is changing it's licensing --ohh it's so bad... looks like the only place to go for real choice and quality is Microsoft!

Well, I'll keep my Dtivos as long as I can, I am one of those extremely satisfied TiVo owners that is in the 90% customer satisfaction group TiVo talks about. Furthermore I recomend TiVo to everyone I know.

Of course I do believe TiVo days are numbered. Alas , even though TiVo is great, the best by far, with the highest customer ratings, it all means nothing....

The merger gets approved, Echostar already announced it's alliance with MOXI and Moxi was sold to Microsoft's Paul Allen,....don't you just love it when a plan comes together to to allow a corporation to use it financial gains from one monopoly to create another....

Microsoft takes two loosing products, Ultimate TV and Xbox , combines them, Paul Allen buys a company called Moxi and controls it all....

Even if they gave those boxes free, they would be useless in a world where everybody everywhere would follow The Rules and The Laws by the book. I mean have they even bothered checking if any of those cross any laws in all the countries they're selling?

What good is it if they give 50 pages of utter, complete bull in 5 different languages if even one rule is conflicting? Why should I care about papers where they have apparently copypasted everything even remotely affecting rules and demands from all laws they could find? It surely seems like it.

Is competition really this fierce that bare products with only kind suggestions of how to use it are impossible? Can't they just sell their things and be happy that people even buy them? Are these the symptoms of too broad rights given to businesses?

And Term 2C says that if someone even alleges you are infringing on copyright, you can be shut down with no notice, no recourse, and there's nothing you can do about it--the agreement indemnifies them completely.

And of course, for $49.95, we can look past this injunction and set you back up again. Of course, in doing this we take no responsibility for the system kicking you off again.

But that's okay. 49.95 gets you back up and running again... For a while.

Generally people are quick to indemnify themselves from everything that may ever happen but usually these statements are not worth the paper they are printed on in a court of law.

Now I am no lawyer but would Microsoft for example be indemnified from the antitrust allegations if they put a clause to that effect in their licence agreement?

More often than not copyright notices and licence agreements are there purely for FUD purposes. I have always seriously doubted the legal grounds a company has to stand on if they claim things in a license agreement which nobody really reads, seeks legal council on or sign.

I would go out and buy one and claim that I never received the licence agreement! Would they then have to prove that I received, read and agreed to it before they can take further steps?

To activate you have to click through the agreement. To do that you accept the terms. It's legal if the terms are legal.

Do you really think any court is going to accept a defence of "oh I really didn't read the licence thing. I didn't think it was legally binding if I didn't read it."

In Australia and other common law countries I think you'll find that shrink wrap licences and post purchase licences are quite legal and enforcable where the terms and conditions aren't illegal.

I often use the example of car parking stations. You generally just drive in and get a ticket and there are no terms obvious. Somewhere just inside the carpark will be a big sign with the terms of use displayed. If you don't like the terms you can generally go back out without payment but continuing on implies your acceptance of the terms. That's settled law in Australia at least.

As for Microsoft, the licence agreement is irrelevant to the question of whether they infringe an anti trust law. And in any case you generally can't indemnify yourself from consequences of an illegal act as a matter of policy.

To activate you have to click through the agreement. To do that you accept the terms. It's legal if the terms are legal.

I am not a lawyer, but you don't have a clue.

The courts are the ultimate arbiters of contract law. If the courts decline to enforce contract terms then they are void.

Shrinkwrap type 'contracts' are problematic in many ways, not least because there is unequal bargaining power. It is a unilateral declaration by one side of what the terms of the agreement are. Such can be declared 'contracts of adhesion' and considered invalid by the courts. Invalid does not mean illegal, a term may be perfectly legal in a contract negotiated between two parties but not legal when it is unilaterally imposed.

I often use the example of car parking stations. You generally just drive in and get a ticket and there are no terms obvious. Somewhere just inside the carpark will be a big sign with the terms of use displayed. If you don't like the terms you can generally go back out without payment but continuing on implies your acceptance of the terms. That's settled law in Australia at least.

Actually it is settled law but not the way you think. In contract law it is impossible to exclude claims in negligence. So if a multi story car park collapses due to lack of maintenance the owner/operator is liable irregardless of what he put on the ticket. In fact there can even be a contract term stating that the owner is not liable in that precise circumstance and it is still invalid.

Incidentally that is why legal constructs such as bills of lading and letters of credit are so interesting, they are not contracts and are not subject to contract law and cannot in fact be constructed using contract law. That is why the digital signature acts were required to recognise the legality of digital signatures on such documents.

Clauses that attempt to restrict remedies were almost always thrown out by the US courts 20 years ago. Today clauses that restrict redress to arbitration are sometimes recognised, but by no means in every case. I suspect however that the provisions put in to many cell phone contracts that prohibit class action lawsuits are unenforceable.

you see... companies are figuring out that it's
way LESS profitable to actually sell you something
compared to makign you licence it, and then controlling how you use it. Software
companies figured this out a while back. People
joke, but if there is more profit in
it, companies will do it. "Please sign
this EULA before you buy this car." Its coming.

By driving this car, you agree to the following End-User License Agreement (EULA):

User assumes all responsibility for any defects on the part of the Vehicle, including defects sold to the User as Features;

The User may not sue the Seller under any existing or future laws that ever existed or ever will;

User may not user the Vehicle in a manner which violates any laws, bylaws, whims of our Corporate Dictatorship, or guidelines of Grannie Mae, that ever existed or ever will;

We reserve the right to remotely detonate the Vehicle if the User is found in violation of the EULA. If later determination finds that the User did not violate the EULA, we will modify the EULA retroactively.

1. Use of the ServiceYou may use the service for any purpose and SonicBlue can't say "boo" about it.

2. Fees and Term of the ReplayTV ServiceSonicBlue would like for you to pay for the service, but if you figure out how to steal it, well we can certainly respect such an achievement.

3. DISCLAIMERS AND LIMITATIONS OF LIABILITYIf you use the ReplayTV 4500 to store emergency response procedures for a nuclear reactor and the product fails to function during a disaster due to neutron flux, SonicBlue accepts full responsibility for the resulting environmental damage.

4. MiscellaneousYou may modify this agreement at any time in any way without notice to SonicBlue. Failure of Sonicblue to notice or respond will constitute our agreement to the new conditions.

BY CLICKING ON THE "I AGREE" LINK BELOW, I REPRESENT THAT I HAVE READ, AND I UNDERSTAND AND AGREE TO, THE TERMS STATED ABOVE.

So what if you don't agree to these terms? You save $250, obviously, but you're left with an unworkable piece of hardware.

Well, what if you could make it workable? Can a *nix be ported onto it? Add a video codec, and create an open-source PVR OS?

Maybe this is something SonicBlue is hoping for. They've got a nice piece of hardware, and they can keep making 'em, just as long as it's someone else who takes the blame for that 30-second commercial skip.

In the US, all products must carry an implied warranty of merchantability [google.com]. If the product can be disabled for any reason, wouldn't that violate the agreement? Thus, this product cannot be sold in the us? Any lawyers care to comment?

In the US, all products must carry an implied warranty of merchantability [google.com]. If the product can be disabled for any reason, wouldn't that violate the agreement? Thus, this product cannot be sold in the us? Any lawyers care to comment?

IANAL but you are correct, I spent a fair bit of time wih lawyers who write such stuff and they wory a lot about enforceability.

Many shrinkwrap products disclaim merchantability but it is unlikely that the courts would consider the clause enforceable and bar a claim on the basis of it.

The more relevant consideration is in what circumstances would ReplayTV activate the clause? I suspect that if they get that desperate that there is not much ReplayTV left to go sue.

These stupid clauses do however have material effect, but not the one you think. They allow ReplayTV to recognise revenue that otherwise they would have to defer since there is an ongoing service commitment. No 'commitment', no need to defer the revenue.

In the US, all products must carry an implied warranty of merchantability

(gdb) show warranty
NO WARRANTY

11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTYFOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHENOTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIESPROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSEDOR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ASTO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THEPROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING,REPAIR OR CORRECTION.

12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITINGWILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/ORREDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES,INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISINGOUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITEDTO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BYYOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHERPROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES.

that's a valid opinion, but not everyone shares it. Many of us don't believe in the concept of intellectual property at all. Furthermore, I'm sure that others share the view that the only contract that they feel obliged to stick to is the exchange of money for goods. Once it's in their (your) hands it's theirs to do with what they will. That hardware is certainly your property, they have no right to render it useless. Disable service, yes, disable the hardware, no.

Look, it's their device and their service. They're not going to go cutting it on people for no reason. That only serves to hurt their reputation and reduce their consumer appeal. On the other hand, the terms protect them and allow them to provide the service you're paying for.

Look, if you hack a satellite T.V. box, you can go to jail. At least if you hack a ReplayTV box, all they'll do is cut your service. So again, what's the problem?

"And Term 2C says that if someone even alleges you are infringing on copyright, you can be shut down with no notice, no recourse, and there's nothing you can do about it--the agreement indemnifies them completely." I was really looking forward to getting one of these, too." Under that agreement, SonicBlue claims the right to destroy your device when you connect for updates.

Oh, pshaw!

Look, people can argue about the ethics of true copyright violation; and, in fact, people have offered reasonable arguments concluding that there's nothing wrong with it. I disagree. Many other people disgaree, as well.

But what all of us agree upon is that within the boundaries of fair use, we should be able to do what we want with copyrighted material. It is absolutely ridiculous that everyone's ability to utilize content in a way that the law has recognized as benign is essentially illegalized in order to control the people who are violating copyright law. It's outrageous.

Now, since we all agree on this regardless of whether or not we fundamentally agree on the legitimacy of intellectual property, shouldn't we concentrate on this battle first?

And what SonicBlue is doing is to enforce copyright protections while still fighting against draconian controls. Hooray for them! Everyone who complains about this and everyone that uses a ReplayTV to violate copyright laws are undermining the effort to fight against these outrageous laws that effectively invalidate fair use.

But what all of us agree upon is that within the boundaries of fair use, we should be able to do what we want with copyrighted material.

But SONICblue doesn't recognize any sort of "fair use" safe harbor:

Notwithstanding any term of this Agreement, ReplayTV has the absolute right to immediately suspend or terminate your account, and terminate this Agreement, if you... (c) infringe (or are alleged to infringe) upon the intellectual property rights of ReplayTV or any third party in your use in any way of the ReplayTV Service.

(emphasis added)

So you might be making Fair Use, but if the Copyright Cartel doesn't like it, phffft! $250 paperweight. Well, at least, when you demonstrate to SONICblue that your use was, indeed, a Fair Use case, they will apologize and reinstate the Service, right? Wrong:

You further agree that you will defend, indemnify and hold harmless ReplayTV and its affiliates from and against any and all claims, actions, suits, liabilities, losses, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any of the actions described above that would entitle ReplayTV to terminate this Agreement.

So no, this is not justifiable CYA. They're saying, "We know that our service could get you into a slapping match with the Copyright Cartel. And we don't want to fight that. But we really do want your money for as long as we can get it."

Peh. I was looking at getting one of these, but now I'll just look into building my own.

Basically, WHENEVER there is a TIVO/ReplayTV device story on/., about a quarter of the posts are "Let's make our own!" posts. Yet, there are NO viable alternatives out there. Yes, alternatives exist, but none are as user friendly or work across as varied a user base as the Tivo or ReplayTV.

Sure, if I lived in Europe and had satellite television I'd be set with a DBS setup. Sure if I had a direct tuner on my tv (not a cable box) I'd be set.

But NOT one project I've seen (including the Linux VCR, the Linux-Tivo thing on/. before, etc) has found a way to change the channels on the CABLE box when you want to watch something else. This is something so incredibly obvious, and ridiculously needed to get ANY decent functionality on 90% of the televisions in the US, yet NOT one project supports this. TIVO and ReplayTV both have support by placing these little emitters above the cable box that sends the correct IR codes when a channel change is needed.

Simply, you can't use the built-in TV tuner for most analog cable hookups and ALL digital cable hookups.

Does ANY project do this? I'm working on coding my own using the TiVo emitters, but I really don't want to duplicate work.

I'm working on this problem. ITs a difficult one- here are some of the issues:

1) IR codes vary greatly from device to device. But more importantly, they are not explicit. In other words the "ON" code is "On" when the machines off, but if the machines on, then it will turn the machine off. so there's no way for one to say "on" and *know* that you're going to get the machine turned on, rather than off. (in many cases)

2) There seems to be no good hardware. What makes sense is to both send and recieve IR signals. so you can control your pc based PVR from a remote... but there is little hardware that will do this and what is there won't do both really elegantly. Making custom hardware is possible, but that involves a lot of issues as well.

3) The setup of the home entertainment system affects how this works. Is there a VCR between the cable box and the PVR? which output of the VCR is the PVR hooked up to? Whatever system will have to either force people to set up their system in a way the PVR IR controller can control, or have a way to teach the PVR about the setup.

But my biggest concern is finding all the codes, and translating them into a format I can use... manufacturers make variations on the even the same model of VCR...

I'm working on this problem. ITs a difficult one- here are some of the issues:

Geez. Do you research anything before you code?

1) IR codes vary greatly from device to device. But more importantly, they are not explicit. In other words the "ON" code is "On" when the machines off, but if the machines on, then it will turn the machine off. so there's no way for one to say "on" and *know* that you're going to get the machine turned on, rather than off. (in many cases)

A PVR system pretty much requires the cable box to be on all the time. TiVo and Replay don't bother toggling the power to these. It's not like they use that much electricity. Leave it on and stop worrying about discrete on/off codes. If your power goes out or something, you probably have more to worry about than your cable box not powering bacvk on.

2) There seems to be no good hardware. What makes sense is to both send and recieve IR signals. so you can control your pc based PVR from a remote... but there is little hardware that will do this and what is there won't do both really elegantly. Making custom hardware is possible, but that involves a lot of issues as well.

LIRC supports a ton of good IR hardware including many devices that send and recieve CIR signals just fine. Many are commercially available, and as you said, you can roll your own if you are looking to add IR support to an embedded device or want to "do it on the cheap" if you will.

3) The setup of the home entertainment system affects how this works. Is there a VCR between the cable box and the PVR? which output of the VCR is the PVR hooked up to? Whatever system will have to either force people to set up their system in a way the PVR IR controller can control, or have a way to teach the PVR about the setup.

Why on earth would you hook up a VCR between your cable box and PVR system and then expect to be able to do anything useful with it? The cable box should be somehow directly connected to your PVR system and then somehow to a video output device -- TV, video switcher (reciever), or maybe connected to the TV through the VCR so that you could actually archive a program on your PVR to video tape if you felt so inclined... The only thing you might want the PVR to be able to do is tell the VCR to start and stop recording for automatic show archival.

But my biggest concern is finding all the codes, and translating them into a format I can use... manufacturers make variations on the even the same model of VCR...

You don't necessarily have to distribute the code library for every cable box on the planet. Just include an option under some setup menu that lets you teach the computer PVR the codes from the cable box remote.

Your half-baked planning is useless. Don't claim to be "working on the problem" until you are actually working on it.

Imagine, tivo can obliterate their competition just by telling them that EVERYONE is performing hacks and copyright violations! ReplayTV will have to shut down all of their own customers! A great Denial Of Service attack!

Come on, people. This is nothing to get bent out of shape about -- this is exactly what the free market is for! Yes, it might be a kewl product, but if you don't agree with the license, don't purchase the product. Get a TiVo or other similar device that doesn't have these ridiculous limitations. The policy will die a natural death when market share dries up because people who refuse to abide by the policy don't buy the product.

Note, too, that if you do disagree with the policy, and yet still purchase, you will have lost. Sonic Blue will have gotten your money, and that tells other companies that people accept this asanine policy. Don't buy!

Also, remember that click-through licenses are as yet unenforceable (but keep watch the DMCA, SSSCA, and sister laws). But I doubt any of us wants to be the guinea pig to drag this through the legal system.

As for me, I will not be buying this product, but I will be writing Sonic Blue to tell them just exactly why I won't be buying. To make it easier for you, here is Sonic Blue's contact page [replaytv.com]. I urge you to send them a similar letter if this policy bothers you.

Come on, people. This is nothing to get bent out of shape about -- this is exactly what the free market is for! Yes, it might be a kewl product, but if you don't agree with the license, don't purchase the product.

The problem is, there really isn't a free market. The copyright cartels, and their goons, are strongarming ReplayTV, TiVo, and other PVR manufacturers into disabling features they don't like (commercial skipping) and possibly even requiring features they do like (embedded commercials, coming to a PVR near you?).

Those that want to make a kick ass PVR and sell it face the daunting certainty of being sued into oblivion by such household cartels as the MPAA and, if the device allows the sharing of music, the RIAA. So long as these monopolists can send their IP lawyer/thugs around shutting down businesses they don't like, intimidating the rest, and even absorbing the more successful (mp3.com), no free market will ever really exist because consumers will be prevented from having the choice of buying what they want altogether.

The invisible hand of the free market doesn't work when this sort of coercion is in play, and whether the terms of this particular license are to protect Replay from the copyright cartels (and whatever court orders their copyright priveleges may result in), or to take advantage of their customers down the road is quite irrelevant. Either way, it is the customer, that's you and I folks, who gets screwed, and the only viable alternative is to give up a little convinience and roll your own GNU/Linux based PVR [expressivefreedom.org] (it is with pleasure I hear the screaming and wailing of the naysayers now, as I watch my Max Headroom episodes in resolutions they can't even dream of:-).

As for me, I will not be buying this product, but I will be writing Sonic Blue to tell them just exactly why I won't be buying. To make it easier for you, here is Sonic Blue's contact page [replaytv.com]. I urge you to send them a similar letter if this policy bothers you.

That is excellent advice... and about the only way a consumer can wield any power in an oligarchical market: vocal boycott of the entire product. (It is the copyright cartels, not the PVR makers, who are the oligarchs, but since they effectively decide which PVRs are legal and which are not it amounts to much the same thing.)

no free market will ever really exist because consumers will be prevented from having the choice of buying what they want altogether.

The free market does not guarantee that every product every consumer wishes to purchase will be made available for sale. You must recognize that, in this situation, you do still have the option to purchase or not purchase the specified product with the specified fine print.

Also, remember that in any contract negotiations -- and that's esentially what this is -- you can take the proposed contract and make a counteroffer without the offending parts. They may not accept your proposed contract, but you still have that right.

Here's another example: cell phones: I want a cellphone that includes 3000 minutes a month for $30 -- with no contract. One cannot get that service anywhere -- so would you argue that there isn't a free market in cell phones? I would hope not, because, while there are stupid rules and bogus choices in the cellphone industry -- so bogus that the industry is imploding as we speak -- there certainly is a free market there.

Remember that a free market is any place at which buyers and sellers exchange goods/services/money on mutually agreeable terms. Why "agreeable"? Well, if you don't agree to the terms, whatever they are, then you won't buy. Buying inherently means that you accept all terms of the sale. They might be grudgingly accepted, but accepted they are.

The free market does not guarantee that every product every consumer wishes to purchase will be made available for sale.

You are sidestepping the issue -- which is odd because you correctly describe it later:

Remember that a free market is any place at which buyers and sellers exchange goods/services/money on mutually agreeable terms.

If you can't get what you want because nobody has the desire or ability to produce it at a price you are willing to pay, that's just life. If, however, you can't get what you want because some third party has coercively interposed himself between buyer and seller, then the free market has been subverted.

But the Punters aren't well informed... so Mom and Pop will buy the kids (who will hack it) a new toy

You are correct here, but the difference is that replay will get whacked on the other end when the backlash comes after people start getting shut off from the service for hacking/accused of copying/etc. "But you signed the contract" is what the customers will hear. And then people will start to realize, "hey, what a crappy service." And Replay's business will tank. (Yeah, yeah, this is all in theory, and pure speculation.)

...you had to pay a dollar a month FOREVER, a dollar-fifty if the phone was any color but black, two dollars if it had Touch-Tone. If you wanted a phone made by any manufacturer but Western Electric, you couldn't connect it. You couldn't connect any device to the phone line. Indeed, you couldn't even attach a mechanical muffler (the Hush-A-Phone) to the mouthpiece that made it harder for people to overhear your conversations.

You just rented "service," equipment and all, at a monthly rate, and you could do with it only what the telephone company wanted you to do with it.

It should be clear at this point that the pendulum is swinging back, and that the Tivos, the cable providers, and the software vendors of the world are trying to turn back the clock to that comfortable time when you didn't own and couldn't control ANYTHING in your house that was wired for communications.

It's only a matter of time before video recorders and computers are not sold at all. You simply get to choose the one that's provided free (or for a $1000 installation charge?) with your subscription service.

Gee, this sounds a LOT like cell-phones. Gotta buy the phone from the company providing the service, no chance to use a phone from elsewhere even if it is compatible with their network. The only difference is that they make you -buy- the phone that you can't use elsewhere instead of renting it.

You just rented "service," equipment and all, at a monthly rate, and you could do with it only what the telephone company wanted you to do with it.

It should be clear at this point that the pendulum is swinging back, and that the Tivos, the cable providers, and the software vendors of the world are trying to turn back the clock to that comfortable time when you didn't own and couldn't control ANYTHING in your house that was wired for communications.

It's only a matter of time before video recorders and computers are not sold at all. You simply get to choose the one that's provided free (or for a $1000 installation charge?) with your subscription service.

Nice over-reaction, but you are forgetting one MAJOR point... the telephone company at the time had a huge monopoly!

There is no similar monopoly in the hardware markets that could make me rent all my equipment and not keep control of it.

In order for this to happen, you'd have to have some new type of hardware come out, completely patented, with no alternatives available that could do something similar. And everyone would need to have one of these. THEN and only then could you do something like what ma bell did with rented telephones.

Turner's CEO has already alleged [slashdot.org] that anyone using a PVR is guilty of IP theft. According to term 2, section C (subsection c) of the agreement:

ReplayTV has the absolute right to immediately suspend or terminate your account, and terminate this Agreement, if you... infringe (or are alleged to infringe) upon the intellectual property rights of ReplayTV or any third party in your use in any way of the ReplayTV Service.

I guess SonicBlue will have (the absolute right) to cancel every subscription to its service.

As products become more and more sophisticated, it seems they're taking more and more licenses like software products instead of the "It's hardware; do whatever you wish with it, but don't bitch if you break it." I'm waiting for the day when a new microwave comes with the license "You agree to not nuke your cat. You agree not to put metal in the microwave. You agree that violating the previous clauses invalidates your license to use this microwave. Microwave will not operate without a valid license".

Though ReplayTV can initially claim the right to shut off your service, they have no legal grounds for altering your device, or changing your service simply because you bang/scratch/open/modify/mutilate your equipment, provided that you are not, in any way, affecting the service provided.You would need to do something to the effect of altering their advertisement storage mechanism in order for ReplayTV to have legal grounds for their agreement.

What store is going to sell a $400 product where the consumer must pay another $250 to use the product? I expect the return rate will be huge for this product.

The stated reason for reducing the pricing was because the extra $250 for a "prepaid lifetime subscription" was reducing sales (especially since the product's remaining lifetime seems likely to be substantially less than a year), so they were going to switch to a monthly subscription model. Instead, they are just playing a "hide the fee" game, hoping that idiots who get the box home will agree to pay another $250 instead of returning the box.

If the fee is properly disclosed (to avoid lawsuits), then nobody will buy this version if they didn't buy the prior version, since the features are unchanged and the net price is unchanged. But we all know that the fee will not be properly disclosed, so there will be many returns and there will be lawsuits by various consumer groups and state AGs, which may be simply part of ReplayTV's "publicity" strategy.

And as noted, the deal is basically that if the company folds, the box can self-destruct and you have nothing, period, for your $650.

In April, I wrote an essay [markwelch.com] chronicling my efforts to buy a PVR, and nothing has changed since then. Nobody sells PVR technology to consumers, period. For those who are willing to do a lot of "do it yourself" work, and who trust that the companies will "do the right thing" despite the lack of any legal obligation to provide service, it is technically possible to get PVR technology working.

I would gladly pay $300 to $500 for something like a TiVo or ReplayTV, plus $10 to $15 per month for programming data, if I thought I could get an actual service that would last for a year or more. I am absolutely unconvinced that any company can or will provide service for a year.

I don't see why people get so outrageous about this. If you don't like the product someone is selling, don't buy it!

If I'm at the grocery, and I see rotten apples, I'm not going to sue the store, I'm just going to take my business elsewhere.
I'm getting rather tired of all these people _expecting_ certain licenses. "But it takes away my Freedom"? Replay has the freedom to put whatever license they feel on their product. Hey, and know what, if you don't hack the thing, they won't cancel your service!

It's not like there's no competition [tivo.com] around to buy your PVR from.

Keep in mind that just because an 'agreement' contains something doesn't make it enforceable. They could put "hack your Replay and you must give us your first-born" in there and no court is going to make you live up to it. If they actually do wipe out some Replays under this agreement, courts are going to be the ultimate authority on whether they can get away with it (assuming, of course, that the users file lawsuits).

I seem to recall some software hacking law that allows you (the owner) to reverse-engineer your software, to 1) make it work or 2) to make it work better than it already does. Does this not apply for hardware or embedded software etc?

I seriously doubt that a device designed to replace VCRs is going to shoot itself in the foot and actively scan your system each and every time you update it.

There have been a lot of people making similar claims -- "They're just CYAing. They don't intend to actually ever enforce these provisions." Bull-crap. Lawyers don't put in clauses for the fun of it. You can be sure that SONICblue's legal team pored over this and every word fully represents the intent of the company. If they never, ever meant to do this, they wouldn't bother reserving the right...

Actually most of the hacking being done has nothing to do with illegal reception, whatever you mean by that. Most hacks are for things like increasing storage space, running web servers, making email interfaces, ugrading memory, etc...

Normally I wouldn't respond to such a troll but this kind of misinformation needs to be stopped. It is what leads to things like the DMCA.

Some people purchase hardware with the intent on using it "their own way". Having your VCR (digital) under a third party's thumb is very scarey. I'll stick with a PC based solution to avoid the big brother problems. The option of subscribing to the program guide, etc. is one thing. Having the ability of a EULA enforced open back door, that can kill your hardware investment remotely, is another!

Go ahead and kill my TiVo. I have it backed up. And there's nothing they can do to stop me from restoring it and then going and using 3rd party services to get program information, etc. -- at that point I consider the informal contract between myself and TiVo to have ended (and it's not so informal in my case - I have a lifetime subscription, and both my TiVo's are prior to the "you must use this with our service" clauses).

And no, there are no hardware kill switches. Or none that have been found at least - and I doubt the first generation boxes had them at all. Even if they were to tell the BIOS to kill itself, the BIOS can be replaced too.

Just buy a tivo, and never hook up the phone line. It doesn't use telepathy to contact Tivo headquarters, you know.

And you don't have to live with crappy PC based solutions. Some day, a PC based solution will be more than powerful enough to never drop frames, glitch out, etc... but that day isn't today *or* tomorrow.

Tivos just kick ass, and I haven't had trouble not using their guide data. Even over the 9600baud serial link, it's small enough to upload quickly (and before anyone says that I should up the baud rate, I have close to 200 ft of cat5 between the tivo and my linux server). The only thing that bothers me at all, is the third party guide utils want to suck 28 megs of html per day. Oh well, that's what my cable modem is for, I suppose.

More contributing to the OpenPVR [sourceforge.net] project. For the price of a Replay TV or even a Tivo, you can put together a very nice system, one or two tuner cards and internet connectivity and have the same functionality under your control. The hardest part of the whole thing is getting channel listings and if you poke around on the net a bit you can usually find listings for your area. tvguide.com's a good place to start, though I expect if a bunch of people start sucking listings off their page, they'll start making it harder to get them.

Going to the allwell web site [gctglobal.com] the box looks OK but only has two PCI slots so using them well is going to be critical.

I would really like to be able to put a firewire card into at least one of the slots so that the device can output to an external disk. There is a version of the box that comes with an MPEG2 decoder which looks a better option in that case.

Also I would probably look for a satelite TV interface card as I use dish TV. I have seen ads for such but they are pricier than normal interface cards. This choice may well mean going the windows XP route since I have no intention of writing my own drivers (been there, done that).

The problem with this build is that it doesn't leave space for a radio card as well. The problem we have found with the Dishplayer PVR (based on ultimate TV we think) is that we keep wanting to rewind and playback radio as well...

The reason you're waiting is because it's not a trivial problem. People who think it's a trivial problem don't have a clue what the problem is.

Recording the data stream, keeping it all perfectly synched, allowing fast forward/skip/rewind at various speeds/intervals and still keeping it synched, the program guide data, the user interface, reasonable indexing of recorded data, and everything else - these aren't simple problems. The first being the hardest. And the guide data isn't free - you have to pay someone for it. To get it in the level of detail and quality that TiVo has you have to pay a good bit (more than what you can download from the net or hack off your cable/DSS).

Free markets do provide what is in demand. But nobody believes that the average consumer will $2k for one of these boxes - which is about what you'd have to charge to recoup R&D costs since you have no ongoing revenue.

There's a reason that TiVo and Replay have done well. And why nobody's sufficiently duplicated them yet on the PC. One of these days you'll realize that.

If you want an absolute brain dead PVR, that may be all you need. But anyone who's used a TiVo won't use a brain dead PVR again - it'd be nearly as bad as going back to a VCR.

TiVo provides name and time, plus episode name, category (and there's 20 or so categories plus sub categories for each), primary actors, director, rating, new/rerun, and a few other markings I'm forgetting now. All of this is useful for searching, indexing, and automatic recording of interesting shows (the new/rerun and episode name are biggies -- so I can select only new programs, or I can decide to not record any episodes I've recorded in the past 30 days).

Looking at Yahoo's listings, some of that is available, but it's very very random and the classifications for some shows appear to be off. And it requires you to drill down on every link, which is not how you want an automated update to work.

Accuracy is another issue... I have no way to comment on the accuracy of Yahoo's data, but I've rarely seen TiVo's data wrong. When it is you can call them up and they'll yell at the company that provides it to them.

And it requires you to drill down on every link, which is not how you want an automated update to work.

Fair enough, except way back in 1994, I wrote a script that pretended to be a Netscape browser and read the day's schedule off TVguide.com... and I know next to nothing about the http protocols. If the info is out there and human-readable, then it can be automated.

If you want an absolute brain dead PVR, that may be all you need. But anyone who's used a TiVo won't use a brain dead PVR again - it'd be nearly as bad as going back to a VCR.

But I suspect that there is a large market for people who just want an enhanced VCR and who haven't yet become addicted:) to the TiVo features.

they present you with a description of the program (so you can decide whether to record this episode of DS9), a genre (so you can record all Sci-Fi program), actors (at least in the case of TiVo, so you can set up a "wishlist" to record all shows with Avery Brooks), a "rerun" flag (so you don't get 15 copies of the same episode), etc, etc..

I actually don't think I'd use those features, so my original post stands. But it doesn't matter: Not a one of those is missing from the Yahoo! listings.

And of course those sites pay for the info at some point. (One could argue that users of public spectrum should have to provide this info as a cost of doing business, but....) And maybe they'd drop the service or use account logins or whatever.

But why do the people providing the hardware also have to be the ones providing the programming info? Other than locking you into their business plan, of course. From the consumer's point of view, it doesn't make sense. With XML looming, one imagines a working group could define an open standard for TV info, and let competition come to the service market. And if several PVR makers agreed to utilize the open standard, they could leverage that freedom (I believe) into real cash.

Why not release such a device with the same VCR-style interface everyone is used to

Because the VCR interface is pretty universally hated? Very few people actually use their VCRs for recording because they find the interface confusing. Why do you think there are so many jokes about it?

And yes, I'm happy for your parents. Now get me data that I can actually use. See my other post for why that data is not sufficient.

And no, you don't know what channel the Simpsons are on. Not all of them at least. Which channels are playing the syndicated reruns? At what times? And do you know when they're going to change their schedule? Or show a special episode?

You don't NEED to know any of that with a good PVR like TiVo or Replay. All you need to know is what the name of the show is... or (with TiVo) the name of an actor. Or the director. Or even a general category. And you can record it, whenever it comes on, whatever channel it comes on, no matter how many lineup changes occur or special episodes are shown.

PVR's are truely freeing... it's not a matter of watching more TV (although you may), it's about watching what you want when you want. Like a show that's on at 8 pm for 30 mins and another that's on at 9 pm for 30 mins? Great. Now you don't have to watch the trash that's on between. You don't have to worry about being home to watch it at 8 pm either. And you don't have to wonder about if there's a tape in the VCR, if there's enough space left on it, or if another show is about to come on that you want to tape so you can't watch that first one.